By Mark J. Valencia

The Decatur Episode: Time for a US-China Incidents at Sea Agreement?

The near-collision between the United States warship Decatur
and a Chinese warship in September 2018 is only the most recent in a series
of near misses between their warships and warplanes in and over the
South China Sea. The most serious was the 2001 collision between a Chinese
fighter jet and a United States surveillance plane resulting in the loss of the
Chinese jet and its pilot and the emergency landing on Hainan and the detention
of the United States plane and its crew. This incident was followed by many
others such as those involving the Bowditch (2001), the Impeccable (2009), the
Cowpens (2013), and several Poseidon 8As (20014, 2015 and 2018).

Now the United States Navy is proposing a major
show of force in the Taiwan Strait and against China’s claims and
actions in the South China Sea. Given this history and the current context of
deteriorating US-China relations across the board, this could result in
military confrontation and even conflict.

A series of similar dangerous military incidents between the United
States and the Soviet Union was a stimulus for their 1972 ground
breaking Agreement on the Prevention of Incidents on and over the High Seas
(INCSEA). The US-Soviet incidents in the 1960s involved dangerously close
encounters between war planes, war ships shouldering one another, and both
ships and aircraft undertaking threatening movements against their
counterparts. The United States proposed talks on preventing such incidents
from becoming more serious. The resulting INCSEA agreement supposedly serves to
“enhance mutual knowledge and understanding of military activities; to reduce
the possibility of conflict by accident, miscalculation, or the failure of
communication; and to increase stability in times of both calm and crisis”. INCSEA
agreements have subsequently been negotiated between Russia and South Korea,
Russia and Japan, and Malaysia and Indonesia.

The US-Soviet INCSEA was followed in 1989 by an Agreement
on the Prevention of Dangerous Military Activities that established
a high-level forum similar to that provided by the INCSEA to focus on ways to
avoid confrontation because of such activities over land and in 12 nautical
mile territorial waters.

But there are of course significant differences between the
then Soviet Union and China. China’s People’s Liberation Army Navy — unlike the former
Soviet navy — is
not yet a blue water force with global reach and responsibilities. But that is
its ambition and it may soon be achieved. Another difference is that the
US-Soviet INCSEA agreement was a product of the Cold War. To enter such an
agreement would enhance the perception that the United States and China are
entering a Cold War. But perhaps
they are.

Despite these differences, a fundamental similarity is that
“the prospect of a minor accident escalating into an act of war between nuclear
powers was something that worried knowledgeable authorities then, just as it
should worry decision makers in China and the United States now”. It is in
neither’s interest to have a mistake
or a miscalculation at sea triggering an unwanted political crisis.

The United States has not offered to discuss an INCSEA with
China. But the two do have a 1998 Military
Maritime Consultative Agreement (MMCA) and it was hoped that such
consultations might eventually lead to an INCSEA agreement. But the MMCA has so
far been little more than an agreement “to talk about talking”, and worse, did
not prevent nor resolve the 2001 US-China aircraft collision and subsequent
incidents. The United States and China also have a series of memoranda
of understanding (MOUs) and a Code for
Unplanned Encounters at Sea (CUES) that set out agreed guidelines
for the conduct of their respective ships and aircraft operating near each
other.

Perhaps the Decatur incident will stimulate the United
States and China to reconsider upgrading their existing ambiguous and voluntary
“understandings” to a binding agreement and thus force a focus on their
different interpretations of relevant terms and provisions.

But contrary to the earlier US-Soviet Agreements which used
binding, obligatory language like “shall” and are considered binding
international law, the MMCA, the US-China MOUs and CUES are both explicitly
voluntary and framed with optional language like “should” and “may”. For
example, one MOU’s language dealing with unsafe aircraft intercepts leaves it
up to the pilots involved to determine what constitutes “professional
airmanship” and “safe separation”. Given this ambiguity, what the United States
perceives as “unsafe and unprofessional” Chinese intercepts of its surveillance
flights are seen by China as professional and appropriate.

Another argument against a US-China INCSEA is that the
US-Soviet INCSEA was not very effective and it did not prevent deliberate
incidents. It is true that it did not stop such incidents all together. Indeed,
a 1988 incident in the Black Sea precipitated by a United States Freedom of
Navigation Operation brought the two to the brink of kinetic conflict. This is
similar to the serious political repercussions of the recent Decatur incident.
But the INCSEA did provide the basis for a compromise which reduced the
frequency and severity of such incidents.

In the Black Sea
incident, a United States Navy cruiser tried to exercise innocent
passages in the Soviet territorial sea. The cruiser was shouldered by a Soviet
frigate that tried to push it onto the high seas. When the two sides met for
their annual consultation agreed under their INCSEA, they discovered that they
had different interpretations of the UN Convention the Law of the Sea (UNCLOS) — which the United States
had not and still has not ratified. This is not greatly different from the contrasting
interpretations by the United States and China of key UNCLOS terms
related to freedom of navigation. In the US-Soviet case, their representatives
made recommendations to their respective governments that resulted in a mutual
acceptable compromise.

The US-China agreements have obviously not prevented the
litany of incidents in and over China’s near shore waters. The problem is that
these “encounters” are not really “unplanned”. They are purposeful and perhaps
expected intercepts designed to send a message. Indeed, they are “unfriendly”
acts in response to what is perceived as “unfriendly” behavior. Rules of the
Road, MOUs and CUES will not prevent them or make them more “friendly”. A
political compromise is necessary.

The protocol to the US-Soviet INCSEA Agreement grew out of
the Consultative Committee established by it and was helpful in harmonizing
goals and identifying important specific areas of agreement and disagreement.

Perhaps the Decatur incident will stimulate the United
States and China to reconsider upgrading their existing ambiguous and voluntary
“understandings” to a binding agreement and thus force a focus on their
different interpretations of relevant terms and provisions.

One US-China MOU provides for an annual “assessment” of any
incidents in the previous year under the auspices of the MMCA. This forum could
be used to explore their different interpretations of key UNCLOS terms related
to freedom of navigation of warships and warplanes. These include “other
internationally lawful uses of the sea”, “due regard”, “peaceful purposes”,
“abuse of rights” and “marine scientific research”.

However, even an INCSEA would only be a basic agreement on
appropriate and inappropriate behavior when platforms of both parties encounter
each other at sea. It would not address the fundamental sources of the problem
that are rooted in their struggle for regional and global dominance. But it
could make these encounters less frequent and less dangerous.